Farooq Haider , J.--This single judgment shall dispose of Crl. Appeal No. 91/2017 filed by Muhammad Farman (appellant) against conviction and sentence recorded against him and Murder Reference No. 35/2017, sent by learned trial Court for confirmation of death sentence, as both the matters have arisen out of one and the same judgment dated 06.01,2017 passed by learned Additional Sessions Judge, Piplan, District Mianwali/trial Court.
2. Muhammad Farman (appellant) alongwith Abdul Rehman (co-accused) was tried in case arising out of F.I.R. No. 66/2014 dated 27.03.2014, registered under Sections 302, 109, PPC at Police Station: Piplan, District Mianwali and after conclusion of trial, learned trial Court vide impugned judgment dated 06.01.2017, while acquitting co-accused namely Abdul Rehman, has convicted and sentenced him as under: i) Under Section 302(b). PPC to 'Death' for committing Qatl-e-Amd of Mst. Maqsoodan Bibi, wife of complainant with payment of compensation Rs. 2,00,0 00/- under Section 544-A, Cr.P.C. to the legal heirs of deceased and in default thereof to further suf fer S.I. for six months.
3. Briefly the prosecution case as per statement (Ex.PH) of Saifullah (complainant), is that he is labourer; on 27.3.2014, he alongwith his wife Maqsoodan Bibi and daughter Amna Bibi was plucking self-grown grass from the wheat crop, in the land of Ameer Umar Khan, situated at Mauza Piplan Pakka; at about 11:00 a.m. Muhammad Farman (accused) son of Muhammad Nawaz, armed with pistol .12 bore came there and raised lalkara that he had come to teach him a lesson for litigation; whereupon 'Maqsoodan Bibi wife of complainant came in front of him and started to pray for mercy whereupon Muhammad Farman (accused) made a straight fire with pistol .12 bore, with the intention to kill her, resultantly pellets hit on the right side of her neck and on various parts of her body; consequently , she fell down; Saifullah (complainant), his daughter alongwith Muham mad Afzal (brother) and Ahmad Sher son of Fateh Sher, who were also plucking the grass nearby there, while witnessing the occurrence rushed towards wife of the complainant; Muhammad Farman fled away towards northern side while brandishing his pistol; they attended Maqsoodan Bibi who succumbed to the injuries at the spot.
Motive behind occurrence was that there had been litigation between Muham mad Farman, Abdul Rehman (accused persons) and the complainant party for the last 8/9 months; about a week ago, Abdul Rehman (accused) in presence of aforementioned witnesses said that they would take revenge for litigation; due to this grudge Muhammad Farman (accused) committed the murder of Maqsoodan Bibi with .12 bore pistol on the abetment of Abdul Rehman (accused).
On the basis of aforementioned statemen t of Saifullah (complainant) (Ex.PH), case vide F.I.R. No. 66/2014 (Ex.PM) dated 27.3.2014 under Sections 302, 109, PPC was registered at Police Station, Piplan, District Mianwali.
After investigation, report under Section 173, Cr.P.C. was submitted in the Court; Muhammad Farman (appellant) alongwith his co-accused namely Abdul Rehman were formally charge sheeted to which they pleaded not guilty and claimed trial. Prosecution during trial examined twelve witnesses, out of which, ocular account was furnished by Saifullah (complainant/PW -6) and Ahmad Sher (brother of deceased/PW -7), medical evidence was produced by Lady Dr. Misbah Maqbool (PW-3), who conducted postmortem examination of the dead body of Maqsoodan Bibi (deceased) whereas detail of relevant investigation was deposed by Allah Nawa z Inspector (PW-8) and Ehsan Ullah Khan, S.I. (PW.9). Prosecution after tendering reports of experts closed its evidence. Thereafter statements of both, the accused persons including appellant under Section 342, Cr.P.C. were recorded wherein they refuted allegations levelled against them; they did not appear on oath under Section 340(2), Cr.P.C, however , Muhammad Farman (appellant) tendered photocopy of FIR No. 195/13 dated 07.08.2013 registered under Sections 324, 452, 440, 149, PPC, at Police Station Piplan, District Mianwali, as Mark 'A', in his defence. Learned trial Court after conclusion of trial while acquitting co-accused namely Abdul Rehman, has convicted and sentenced the appellant as mentioned above through the impugned judgment.
4. Learned counsel for the appellant has submitted that conviction recorded against and sentence awarded to the appellant through impugned judgment are against the law and facts' and result of non-reading/misreading of evidence. Learned counsel for the appellant finally prayed for acquittal of the appellant.
5. Conversely , learned Additional Prosecutor General assisted by learned counsel for the complainant has supported the impugned judgment and prayed for dismissal of the appeal.
6. Arguments heard. Record perused.
7. It has been noticed that occurrence took place on 27.03.2014 at 11:00 a.m. wherein Maqsoodan Bibi, wife of Saifullah (complainant) received fire-arm injury through hitting of pellets on the right side of her neck as well as on various parts of her body at the hands of Muhammad Farman (appellant) as a result of which she succumbed to the injuries at the spot; subsequently Allah Nawaz Inspector (PW-8) reached at the place of occurrence and recorded statement of Saifullah (complainant PW-6) vide Fard Bayan (Ex.PH) at 1:00 p.m. and sent the same to concerned police station for registration of case, where on the same day at 1:30 p.m. F.I.R. (Ex.PM) was recorded; hence, in the peculiar facts and circumstances mentioned above, case has been got registered without unnecessary delay; name of accused (appellant), names of witnesses, manner of occurrence and other particulars are clearly mentioned in the FIR; postmortem examination over dead body of Maqsoodan Bibi (deceased) was also conducted promptly and without any loss of time on the same day at 2:00 p.m. i.e. within three hours after the occurrence, which facts eliminate any chance of consultation, deliberation and concoction; furthermore, both the parties belong to the same vicinity and the occurrence took place in the day light so there was no chance of the misidentification of accused.
Ocular account produced by prosecution comprises upon statements of Saifullah (complainant/PW -6) and Ahmad Sher (PW-7); as per ocular version, Muhammad Farman (appellant) made fire shot at Maqsoodan Bibi, due to which pellets hit on right side of her neck as well as on various parts of her body; medical evidence comprising upon her Postmortem examination report (Ex.P A & PA/1) and statement of Lady Dr. Misbah Maqbool (PW-3), has supported and confirmed said ocular version; there is no reason that why Saifaullah (complainant/ PW-6) and Ahmad Sher (PW-7) will make substitution of actual culprit/murderer , who has committed murder of Maqsooda Bibi i.e. wife of complainant and sister of Ahmad Sher (PW-7); they offered valid reason regarding their presence at the time and place of occurrence; since they were plucking self-grown grass from the ripen wheat crop and same is always plucked by hand and not with any tool, therefore, non-production of any cutting tool by them to Investigating Officer is not fatal rather quite natural; in such like situation i.e. attack, eastern wife always comes forward in front of her husband for securing him; perusal of the statements of complainant (PW-6) and Ahmad Sher (PW-7) reveals that inspite of lengthy cross-examination, nothing could be extracted from their mouth which may go against them; they remained- consistent and deposed detail of Occurrence in straightforward manner; then credit could not be shaken; their evidence has been found as confidence inspiring, truthful and reliable, which has been supported/confirmed by the medical evidence as stated above. Therefore, prosecution has proved its case against Muhammad Farman (appellant).
As far as recovery of .12 bore pistol from Muhammad Farman (appellant) is concerned, we have noticed that a crime empty of .12 bore pistol was secured from the place of occurrence, which was submitted in the office of Punjab Forensic Science Agency , Punjab, Lahore on 03.04.2014; Muhammad Farman (appellant) was arrested in the case on 06.04.2014, he got recovered .12-bore pistol on 10.04.2014, same was also submitted in the office of Punjab Forensic Science Agency , Punjab, Lahore on 14.04.2014 and report of Punjab Forensic Science Agency , Punjab Lahore (Ex.PO) shows that said cartridge case/empty has matched with said .12 bore pistol and conclusion mentioned therein is being reproduced: "Conclusion: The item SI shotgun was examined and found to be in mechanical operating condition with no safety features.
The items SSI shotshell cases was identified as having been fired in the item IS shotgun.
Therefore, aforementioned recovery has corroborated the case of prosecution against the appellant.
It is pertinent to mention here that Muhammad Farman (appellant) during recording of his statement under Section 342, Cr .P.C. in reply to Question No. 10, stated as under: "I am innocent in this case. Complainant and PWs are inimical to me as they had suspicion of Mst. Amna Bibi with me and due to the said grudge, they earlier while armed with fire-arm weapons launched murderous assault on our home and in this regard case FIR No. 195 dated 7.8.2013 u/S. 3241 1481 149, PPC was registered with P.S Piplan, wherein Saifullah complainant was one of the accused. Due to the said grudge Saifullah complainant fired at his daughter Mst. Amna Bibi on the day of occurrence and when his wife Mst. Maqsood an Bibi deceased came forward to intervene between them and save the life of her daughter Mst. Amna Bibi, she accidently received fire shot made by Saifullah complainant on Mst. Amna Bibi. Complainant with consultations and deliberations lodged FIR against me and my brother . I and my brother are innocent and we have no concern with the said occurrence. At the time of occurrence, no criminal or civil litigatio n was pending between the parties and the disputes were already compromised between the parties and in this regard statements before the Court were recorded and accused including Saifullah complainant were acquitted of the charge."
As far as aforementioned version of Muhammad Farman (appellant) is concerned, same is mere bald assertion; neither appellant himself appeared in support of the same nor produced any witness to prove the same; even otherwise, said version could not get any support from the record. So far as photocopy of FIR No. 195/2013 (Mark 'A') is concerned, same has neither been proved nor could provide any support to the defence version. In view of above, defence version is liable to be discarded.
8. Now when Court has kept aforementioned prosecution version, which is based upon promptly lodged F.I.R, statements of eye-witness, who have faced lengthy cross-examination and supported/confirmed by medical evidence in the case and corroborated by the recovery of weapon of offence, in juxtaposition with defence version, which has neither been proved nor found as probable/possible, then prosecution version has been found as straightforward, plausible and reliable; therefore, we have come to the conclusion that prosecution has proved its case against the appellant upto hilt, beyond any shadow of doubt; resultantly , aforementioned conviction recorded against Muhammad Farman (appellant) is upheld and maintained.
9. As far as question of quantum of sentence of Muhammad Farman (appellant) is concerned, we have noticed that only single fire-arm shot was made by the appellant at the deceased; motive as stated in the Fard Bayan (Ex.PH) and FIR (Ex.PM) was that there had been litigation between the accused and the complainant party for the last 8/9 months and due to this grudge Muhammad Farman (appellant) committed the murder of Maqsoodan Bibi wife of the complainant; perusal of record shows that both the parties got registered cases against each other , however , said cases were decided on account of compromise effected between the parties on the intervention of respectables of the vicinity . Learned trial Court also held in impugned judgment that motive is not proved; relevant portion is reproduced: "In these circumstances it is held that the motive is not proved as alleged by the prosecution."
In these circumstances, prosecution could not prove alleged motive and immediate cause of occurrence. It is trite of law that if prosecutions fails to prove alleged motive and immediate cause of occurrence then said failure reacts against the sentence of death awarded to convict on the charge of murder; in this regard, guidance has been sought from the dictum laid down in the cases of "Ali Bux and others versus The State " (2018 SCMR 354), "Mst.
Nazia Anwar versus The State and others " (2018 SCMR 911) and "Nawab Ali vs. The State " (2019 SCMR 2009 ).
So, in view of aforementioned mitigating factors, we convert sentence of "death" awarded to Muhammad Farman (appellant) by learned trial Court to "imprisonment for life" under Section 302(b), PPC, however , order passed by the learned trial Court regarding payment of compensation by the appellant to legal heirs of the deceased and order in respect of imprisonment in default of payment of compensation are maintained. The benefit under Section 382-B, Cr.P.C. shall also be given to the accused. Therefore, instant criminal appeal is dismissed with partial modification/reduction in sentence of Muhammad Farman (appellant) as mentioned above.
10. Murder Reference No. 35/2017 is answered in negative and death sentence awarded to Muhammad Farman (appellant), is not confirmed .